FRN v. ADEMOLA (2021)

FRN v. ADEMOLA

(2021)LCN/15016(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, February 03, 2021

CA/A/419C/2017

RATIO

CRIMINAL LAW: CIRCUMSTANCES A NO CASE SUBMISSION CAN BE MADE

The law is trite that a Court or the Defendant who contends that at the end of the case of the prosecution, the prosecution has not established the essential ingredients of the offence or that there is no evidence linking the Defendant with the commission of the offence or the evidence so far led is such that no reasonable Court will convict, can by the provisions of Sections 302 and 303 of the Administration of Criminal Justice Act, 2015 (ACJA) make a no case submission. While under Section 357 of ACJA a Defendant can be discharged where a Court finds that a case is not made out against the Defendant to sufficiently require him to put in his defence. In essence, the Court will discharge a Defendant if the no case submission is upheld. PER MOHAMMED BABA IDRIS, J.C.A.
CASE: POSITION OF THE LAW AS IT RELATES TO NO CASE SUBMISSION

Now, the law as it relates to no case submission is not whether the evidence against the accused is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring at least some explanation from the Defendant. In the case of AJIBOYE & ANOR VS. STATE (1995) LPELR – 300 (SC) it was held that:
“It is also settled by a plethora of authorities that a submission of “no-case” to answer may be properly made and upheld in the following circumstance as correctly stated by the lower Courts:
1. When there has been no evidence to prove an essential element in the alleged offence;
2. When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.”
However, in any case where there is even slight evidence linking a Defendant with the commission of the offence charged, the case ought to proceed for the Defendant to explain his own side of the matter. See ADEYEMI VS. THE STATE (1991) 7 SC (PT. 11) 1. PER MOHAMMED BABA IDRIS, J.C.A.
CASE: MEANING OF A PRIMA FACIE CASE

So what then is a prima facie case for which the prosecution must prove? A prima facie case has been held to mean a case in which there is evidence which will suffice to support the allegation made in it and which will stand unless there is evidence to rebut the allegation. See AJIDAGBA & ORS VS. I.G.P. (1958) 3 FSC 5; (1958) SCNLR 60; OKORO VS. THE STATE (1988) 5 NWLR (PT. 94) 255; ADEYEMI VS. THE STATE (1991) 6 NWLR (PT. 195) 1. PER MOHAMMED BABA IDRIS, J.C.A.

CRIMINAL LAW: NATURE OF PROVING CASES OF CONSPIRACY

Indeed, in most cases of conspiracy it is a matter of inference, deduced from certain criminal acts of parties done in pursuance of an apparent criminal purpose between the parties. Essentially, conspiracy is seldom proved by direct evidence but by circumstantial evidence and inferences from proven acts. See FOLORUNSHO ALUFOHAI VS. THE STATE (2014) LPELR – 24215 (SC) and DAVID OMOTOLA & ORS VS. THE STATE (2009) LPELR – 2663 (SC). PER MOHAMMED BABA IDRIS, J.C.A.

CRIMINAL LAW: DEFINITION OF CONSPIRACY

In Section 96 of the Penal Code, conspiracy was defined as:
“96.
(1) When two or more persons agree to do or cause to be done:
(a) An illegal act; or
(b) An act which is not illegal by illegal means, such an agreement is called criminal conspiracy.”
In KAZA VS. STATE (2008) LPELR – 1683 the Supreme Court held as it relates to conspiracy that:
“Although Section 97 is the punishment Section, it is really Section 96 that explicates the import of criminal conspiracy. It is Section 96 of the Penal Code that conceptionalises the import of criminal conspiracy and for ease of reference it provides that: 96(1) When two or more persons agree to do or cause to be done – (a) an illegal act, or (b) an act which is not illegal by illegal means, such an agreement is called a criminal conspiracy. (2) Notwithstanding the provisions of Subsection (1); no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to that agreement in pursuance thereof. The import of the provisions of Section 96 supra has been considered in a long line of cases including Chianugo v. The State (2002) 2 NWLR (pt. 750) 225 at 236 para.A.; Obiakor v. The State (2002) 10 NWLR (pt. 776) 612 at 628; Upahar v. The State (2003) 6 NWLR (pt. 816) 23 at 262 and Idi v. Yau (2001) 10 NWLR (pt. 722) 640 at 651 and 658. These cases in summary establish that to secure the conviction of an accused on a charge of conspiracy it must be proved beyond reasonable doubt that: (1) The agreement to commit an offence – an illegal act is between two or more persons. (2) That the said act apart from the agreement itself must be express in furtherance of the agreement.” PER MOHAMMED BABA IDRIS, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

FEDERAL REPUBLIC OF NIGERIA APPELANT(S)

And

ADENIYI FRANCIS ADETOKUNBO ADEMOLA RESPONDENT(S)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal, appealed against the decision of the High Court of the Federal Capital Territory, Abuja in Charge No. CR/21/2016 delivered on the 5th day of April, 2017 by Honorable Justice Jude Okeke J wherein his Lordship, following a no case submission made by the Respondent held that the Prosecution did not make out a prima facie case requiring the Respondent to enter a defence in respect of all counts in the information and thereby discharged the Respondent and his co-defendants.

The facts of the case leading to this appeal as adduced from the pleadings at the trial Court are to the effect that by an amended information dated 31st January, 2017, the Appellant brought an 18 count charge against the above named Respondent and 2 others. The 18 count information is as follows:
“AMENDED INFORMATION
At the Court session Holden at Abuja on the … day of … 2017, the High Court of the Federal Capital Territory is informed by the Honourable Attorney General of the Federation pursuant to Sections 104 and 379 of the Administration of Criminal Justice Act, 2015

that you, 1. ADENIYI FRANCIS ADETOKUNBO ADEMOLA 2. OLABOWALE TOLUWATOPE ADEMOLA 3. JOE ODEY AGI are charged with the following offences:
COUNT ONE
STATEMENT OF OFFENCE
Conspiracy to Influence the Course of Justice contrary to Section 97 of the Penal Code Act, Cap 532 Laws of the Federal Capital Territory of Nigeria, Vol. 4 2007 and punishable under Section 97 of the same law.
PARTICULARS OF OFFENCE
Adeniyi Francis Adetokunbo Ademola Adult, “M”, Olabowale Toluwatope Ademola “F” both of No 32, Samuel Ogbemudia Crescent, Zone E, Apo, Abuja and Joe Odey Agi “M” Principal Partner, – Joe Agi & Associates of 1, Volta Street, Minister’s Hill Maitama, Abuja, between 11th and 26th March, 2015 in Abuja within the jurisdiction of this Honourable Court conspired to influence Adeniyi Francis Ademola in the course of his official functions as a Judge of the Federal High Court with a sum of N30,000,000 and thereby committed an offence contrary to Section 97 of the Penal Code Law.
COUNT TWO
STATEMENT OF OFFENCE
Influencing the Course of Justice contrary to Sections 182 of the Penal Code Act, Cap 532 Laws of the Federal Capital Territory of Nigeria, Vol. 4 2007

and Punishable under Section 182 of the same law.
PARTICULARS OF OFFENCE
Adeniyi Francis Adetokunbo Ademola Adult, “M”, Otabowale Toluwatope Ademola “F” both of No 32, Samuel Ogbemudia Crescent, Zone E, Apo, Abuja and Joe Odey Agi “M” Principal Partner of Joe Agi & Associates of 1, Volta Street, Minister’s Hill, Maitama, Abuja, between 11th and 26th March, 2015 in Abuja within the jurisdiction of this Honourable Court influenced Adeniyi Francis Ademola in the course of his official functions as a judge of the Federal High Court with a sum of 30,000,000.00 and thereby committed an offence contrary to Section 97 of the Penal Code Law.
COUNT THREE
STATEMENT OF OFFENCE
Obtaining Gratification, contrary to Section 17(1) (a) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 17 (1) (c) of the same Law.
PARTICULARS OF OFFENCE
OLABOWALE TOLUWATOPE ADEMOLA “F”, 59 years of age, of No 32, Samuel Ogbemudia Crescent, Apo Zone E, Abuja, FCT, between 11th and 26th March 2015 at Abuja, within the jurisdiction of this Honourable Court, corruptly

obtained on behalf of Adeniyi Francis Adetokunbo Ademola the sum of Ten Million Naira (NGN10,000.000.00) from Joe Odey Agi practicing under the name of Messrs Joe Agi and Associates, through your bank account number 201/110160/1/1/0 domiciled at GT Bank PLC as gratification, in the exercise of his official functions as a judge of the Federal High Court of Nigeria and thereby committed an offence contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000.
COUNT FOUR
STATEMENT OF OFFENCE
Receiving Gratification for any other person, contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 17(1) (C) of the same Law.
PARTICULARS OF OFFENCE
OLABOWALE TOLUWATOPE ADEMOLA “F”, 59 years of age, of No 32, Samuel Ogbemudia Crescent, Apo Zone E, Abuja, FCT, between 11th and 26th March 2015 at Abuja, within the jurisdiction of this Honourable Court, corruptly obtained on behalf of Adeniyi Francis Adetokunbo Ademola the sum of Ten Million Naira (NGN10,000.000.00) from Joe Odey Agi practicing under the name of Messrs Joe Agi and Associates, through your bank

account number 201/110160/1/1/0 domiciled at GT Bank PLC as gratification, in the exercise of his official functions as a judge of the Federal High Court of Nigeria and thereby committed an offence contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000.
COUNT FIVE
STATEMENT OF OFFENCE
Receiving Gratification for any other person, contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 17(1) (C) of the same Law.
PARTICULARS OF OFFENCE
OLABOWALE TOLUWATOPE ADEMOLA “F”, 59 years of age, of No 32, Samuel Ogbemudia Crescent, Apo Zone E, Abuja, FCT, between 11th and 26th March 2015 at Abuja, within the jurisdiction of this Honourable Court, corruptly obtained on behalf of Adeniyi Francis Adetokunbo Ademola the sum of Ten Million Naira (NGN10,000.000.00) from Joe Odey Agi practicing under the name of Messrs Joe Agi and Associates, through your bank account number 201/110160/1/1/0 domiciled at GT Bank PLC as gratification, in the exercise of his official functions as a judge of the Federal High Court of Nigeria and thereby committed an offence

contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000.
COUNT SIX
STATEMENT OF OFFENCE
Bribery of Public Officer contrary to Section 18 (d) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 18 (d) of the same Law.
PARTICULARS OF OFFENCE
JOE ODEY AGI, practicing under the name of Joe Agi & Associates, of No 1, Volta Street, Minister’s Hill, Maitama, Abuja, between the 11th March 2015 and 26th March 2015, in Abuja, within the jurisdiction of this Honourable Court, offered ADENIYI FRANCIS ADETOKUNBO ADEMOLA through Ademola Olabowale Toluwatope’s bank account number 201/110160/1/1/0 domiciled at GT Bank PLC the sum of Ten Million Naira, (NGN10,000,000.00) as gratification in the exercise of his official functions as a judge of the Federal High Court of Nigeria and thereby committed an offence contrary to Section 18(d) of the Corrupt Practices and Other Related Offences Act 2000.
COUNT SEVEN
STATEMENT OF OFFENCE
Bribery of Public Officer contrary to Section 18(d) of the Corrupt Practices and Other Related Offences Act 2000 and punishable under

Section 18(d) of the same Law.
PARTICULARS OF OFFENCE
JOE ODEY AGI, practicing under the name of Joe Odey Agi & Associates, of No 1, Volta Street, Minister’s Hill, Maitama, Abuja, between the 11th March 2015 and 26th March 2015, in Abuja, within the jurisdiction of this Honourable Court, offered ADENIYI FRANCIS ADETOKUNBO ADEMOLA through Ademola Olabowale Toluwatope’s bank account number 201/110160/1/1/0 domiciled at GT Bank PLC the sum of Ten Million Naira, (NGN10,000,000.00) as gratification in the exercise of his official functions as a judge of the Federal High Court of Nigeria and thereby committed an offence contrary to Section 18(d) of the Corrupt Practices and Other Related Offences Act 2000.
COUNT EIGHT
STATEMENT OF OFFENCE
Bribery of Public Officer contrary to Section 18(d) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 18(d) of the same Law.
PARTICULARS OF OFFENCE
JOE ODEY AGI, practicing under the name of Joe Agi & Associates, of No 1, Volta street, Minister’s Hill, Maitama, Abuja, between the 11th March, 2015 and 26th March 2015, in Abuja, within the

jurisdiction of this Honourable Court, offered ADENIYI FRANCIS ADETOKUNBO ADEMOLA through Ademola Olabowale Toluwatope’s bank account number 201/110160/1/1/0 domiciled at GT Bank PLC the sum of Ten Million Naira (NGN10,000,000.00) as gratification in the exercise of his official functions as a judge of the Federal High Court of Nigeria and thereby committed an offence contrary to Section 18(d) of the Corrupt Practices and Other Related Offences Act 2000.
COUNT NINE
STATEMENT OF OFFENCE
Corruptly giving of gift contrary to Section 17(1) (b) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 17(1) (c) of the same Law.
PARTICULARS OF OFFENCE
JOE ODEY AGI practicing under the name of Joe Agi & Associates of No 1, Volta Street, Minister’s Hill, Maitama, Abuja, on or about the 5th of January 2015, in Abuja, within the jurisdiction of this Honourable Court, corruptly gave ADENIYI FRANCIS ADETOKUNBO ADEMOLA a gift of a BMW Saloon 320i valued at Eight Million Five Hundred Thousand Naira (N8,500,000) through his son ADEMIDE ADEMOLA, as an inducement in the exercise of his official functions as a judge

of the Federal High Court of Nigeria and thereby committed an offence contrary to Section 17(1)(b) of the Corrupt Practices and Other Related Offences Act, 2000.
COUNT TEN
STATEMENT OF OFFENCE
Holding Gratification, contrary to Section 24 of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under the same section of the law.
PARTICULARS OF OFFENCE
Adeniyi Francis Adetokunbo Ademola Adult, “M”, 63 years of No 32, Samuel Ogbemudia Crescent, Zone E, Apo, Abuja on or about the 7th day of October, 2016 at Abuja, within the jurisdiction of this Honourable Court, in your capacity as a public servant held in your possession the sum of Fifty Four Million (N54,000,000) Naira; One Hundred and Twenty One Thousand Two Hundred and Seventy Nine Dollars ($121,279); Four Thousand and Four Hundred Euros (€4,400); Eighty Pounds (£80); and One Thousand and Ten Rupees (R1,010), being gratification received in the exercise of your official functions as a Judge of the Federal High Court of Nigeria and thereby committed an offence contrary to Section 24 of the Corrupt Practices and Other Related Offences Act, 2000.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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COUNT ELEVEN
STATEMENT OF OFFENCE
Dealing with property subject matter of an offence contrary to Section 24 of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under the same Law.
PARTICULARS OF OFFENCE
Adeniyi Francis Adetokunbo Ademola male, 63 years of age, of No. 32, Samuel Ogbemudia Crescent, Apo Zone E, Apo, Abuja FCT, on 24th day of February 2014 at Abuja, within the jurisdiction of this Honourable Court, in your capacity as a Public Servant transferred the sum of Eighty Five Million Naira (N85,000,000) from account number 206/174191/1/2/0 domiciled at Guaranty Trust Bank to Franco Dan Parker which sum forms the proceeds of an Unlawful act and thereby committed an offence contrary to Section 24 of the Corrupt Practices and Other Related Offences Act, 2000.
COUNT TWELVE
STATEMENT OF OFFENCE
Dealing with property subject matter of an offence contrary to Section 24 of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under the same Law.
PARTICULARS OF OFFENCE
ADENIYI FRANCIS ADETOKUNBO ADEMOLA, adult, male, 63 years of age, of No 32, Samuel Ogbemudia Crescent,

Apo Zone E, Abuja, FCT, on 24th day of February 2014 at Abuja, within the jurisdiction of this Honourable Court, in your capacity as a Public Servant transferred the sum of Ninety Million Naira (N90,000,000) from account number 206/174191/1/2/0 domiciled at Guaranty Trust Bank to Franco Dan Parker which sum forms the proceeds of an unlawful act and thereby committed an offence contrary to Section 24 of the Corrupt Practices and Other Related Offences Act 2000.
COUNT THIRTEEN
STATEMENT OF OFFENCE
Attempt to obtain gratification by a public servant contrary to Section 115 (b) of the Penal Code Act, Cap 532 Laws of The Federal Capital Territory of Nigeria, Vol. 4 2007, and punishable under Section 115(ii) of the same Law.
PARTICULAR OF OFFENCE
ADENIYI FRANCIS ADETOKUNBO ADMOLA, adult male, 63 years of age, of No 32, Samuel Ogbemudia Crescent, Apo Zone E, Abuja, FCT, on or about the 21st day of February 2014 at Abuja, within the jurisdiction of this Honourable Court, in your capacity as Public Servant transferred the sum of Ninety million Naira (90,000,000) from account number 206/174191/1/2/0 domiciled at Guaranty Trust Bank to Franco

Dan Parker which sum forms the proceeds of an unlawful act thereby committed an offence contrary to Section 24 of the Corrupt Practices and Other Related Offence Act 2000.
COUNT FOURTEEN
STATEMENT OF OFFENCE
Obtaining Gratification, contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 17(1)(c) of the same law.
PARTICULAR OF OFFENCE
ADENIYI FRANCIS ADETOKUNBO ADEMOLA, adult male, 63 years of age, of No. 32, Samuel Ogbemudia Cresent, Apo Zone E, ABUJA, FCT, on the 5th day of January 2015 at Abuja, within the jurisdiction of this Honourable Court, in your capacity as a Public Servant, corruptly received from JOY ODEY AGI, practicing under the name of Joe Agi & Associates, a BMW Saloon 320i valued at Eight Million Five Hundred Thousand Naira (N8,500,000) through your son ADEMIDE ADEMOLA, as gratification in the exercise of your official functions as a judge of the Federal High Court of Nigeria and thereby Committed an offence Contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000.
COUNT FIFTEEN
STATEMENT OF OFFENCE<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Illegal Possession of Firearms contrary to Section 3 of the Robbery and Firearms (Special Provisions Act), 2004 and Punishable under Section 3 of the same Act.
PARTICULARS OF OFFENCE
ADENIYI FRANCIS ADETOKUNBO ADEMOLA, adult male, 63 years of age, of No 32, Samuel Ogbemudia Crescent, Apo Zone E, Abuja FCT on or about the 7th day of October, 2016 at Abuja within the jurisdiction of this Honourable Court had in your possession 1 (one) Pump Action rifle with serial number AVAR MAGNUM 6284, without a valid licence, and thereby committed an offence contrary to Section 3 of the Robbery and Firearms (Special Provisions Act), 2004.
COUNT SIXTEEN
STATEMENT OF OFFENCE
Illegal possession of Firearms contrary to Section 3 of the Robbery and Firearms (Special Provisions Act), 2004 and punishable under Section 3 of the same Act.
PARTICULARS OF OFFENCE
ADENIYI FRANCIS ADETOKUNBO ADEMOLA, adult male, 63 years of age, of No 32, Samuel Ogbemudia Crescent, Apo Zone E, Abuja FCT on or about the 7th day of October, 2016 at Abuja within the jurisdiction of this Honourable Court had in your possession 1 (one) Pump Action rifle with serial number

AVAR MAGNUM 6284, without a valid licence, and thereby committed an offence contrary to Section 3 of the Robbery and Firearms (Special Provisions Act), 2004.
COUNT SEVENTEEN
STATEMENT OF OFFENCE
Illegal possession of Ammunition contrary to Section 8 of the Firearms Act, Cap F28 LFN 2004 and punishable under Section 27 (1) (b) (ii) of same Act.
PARTICULARS OF OFFENCE
ADENIYI FRANCIS ADETOKUNBO ADEMOLA, adult male, 63 years of age, of No 32, Samuel Ogbemudia Crescent, Apo Zone E, Abuja on or about the 7th day of October, 2016 at Abuja within the jurisdiction of this Honourable Court had in your possession thirty-five (35) rounds of live ammunition (cartridges) without a valid licence and thereby committed an offence contrary to Section 8 of the Firearms Act. Cap F28 LFN 2004.
COUNT EIGHTEEN
STATEMENT OF OFFENCE
False Information with intent to mislead a Public Servant Contrary to Section 140 of the Penal Code Act Cap 532 Laws of the Federal Capital Territory Vol.4. 2007 and punishable under the same law.
PARTICULARS OF OFFENCE
Adeniyi Francis Adetokunbo Ademola Adult, “M”, of No 32, Samuel Ogbemudia Crescent,

Zone E, Apo, Abuja on or about the 10th day of October, 2016 at Abuja, within the jurisdiction of this Honourable Court, gave false information to Babatunde Adepoju (an operative of the Department of State Services in your written statement) that one pump action Rifle and Cartridges belonged to Hon. Justice A. R. Mohammed, a serving Judge of the Federal High Court, Abuja, which false information was intended to mislead the DSS Operative in the discharge of his duties and thereby committed an offence contrary to Section 140 of the Penal Code Act Cap 532 Laws of the Federal Capital Territory Vol. 4. 2007.”

The Respondent was charged with 11 counts of conspiracy to influence the course of justice, influencing the course of justice, receiving gratification and illegal possession of firearms which the Respondent pleaded not guilty to. The Appellant in support of its case called 19 witnesses who tendered numerous exhibits marked Exhibit A – ZZZ. While the Respondent opted for a no case submission stating that the Appellant had not made a prima facie case against the Respondents and the application was granted by the trial Court.

Dissatisfied with the judgment of the trial Court, the Appellant filed an amended Notice of Appeal dated 15th December, 2017 comprising of (14) fourteen grounds of appeal. The parties adopted and filed their respective briefs of argument in this appeal.

In the Appellant’s brief of argument as settled by its counsel Segun Jegede Esq dated 15th December, 2017 and filed on the 20th December, 2017, the following issues for determination were distilled from the grounds of appeal:
i. Whether the learned trial judge was right in holding that the Appellant had not made out a prima facie case on counts 1, 2, 10, 11, 12, 13, 14, 15, 16, 17 and 18 against the Respondent warranting his being called upon to enter a defence. (Grounds 1, 5, 7)
ii. Whether in considering the Respondent’s no case submission the learned trial judge was right to delve into the merits of the case by ascribing probative value to the evidence of witnesses and assessing their credibility. (Grounds 4 and 12)
iii. Whether the learned trial judge was right in holding that Section 53 and 60 of the Corrupt Practice and Other Related Offences Act do not apply to counts 1 – 5 of the

information. (Ground 5)
iv. Whether the learned trial judge was right to preside over the case against the Respondent when he had a pending similar complaint before the National Judicial Council. (Grounds 2 and 14).

Under issue one, Counsel for the Appellant while relying on numerous cases including OLAWALE AJIBOYE VS. THE STATE (1995) LPELR – 300 (SC); DELE FAGORIOLA VS. FEDERAL REPUBLIC OF NIGERIA (2014) ALL FWLR 74 and METUH VS. FEDERAL REPUBLIC OF NIGERIA (2017) NWLR (PT. 1554), submitted that our jurisprudence on “no-case submission” clearly establishes that the enquiry to be made by a trial Court in determining whether a prima facie case has been made out against the defendant is to look at the entirety of the evidence led by the prosecution to ascertain if the defendant has cause to give an explanation.

Counsel for the Appellant while explaining Count 1 stated that Section 96(1) of the Penal Code Act, Cap 533 LFN means:
(i) An illegal act; or
(ii) An act which is not illegal by illegal means, such an agreement is called a criminal conspiracy.

Additionally, it was submitted that it is sufficient if a

common intention to commit the main offence is established and that by STATE VS. OLADIMEJI (2003) 7 SCNJ 67 and IDRISU AHMED VS. STATE (1998) 7 SCNJ (60) the Court stressed that common intention may be inferred from circumstances and it will not be necessary to prove express agreement in order to enable a Court to convict of conspiracy and participation in the main offence. Additionally, that by the evidence adduced by PW8, PW9 and PW16 in support of the prosecution’s case, the high calling of the Respondent whose position is measured by probity and integrity.

It was further argued that the illegal act contemplated by the Respondent and his co-defendants was to influence the course of justice by paying the sum of N30,000,000 to the Respondent in the course of his duties as a judicial officer to give favourable judgment to the 3rd Defendant’s clients which was realized by the issuing of favourable garnishee orders to the 3rd Defendant’s client.

Furthermore, it was submitted that the evidence adduced by PW16, PW8 and PW9 adequately meets the threshold of proof required for the inchoate offence of conspiracy at the stage of no case

submission and even without more, goes to prove the substantive offence regardless that proof of conspiracy does not require the consummation of the full offence. Additionally, the Appellant further submitted that the learned trial judge’s recognition that temptation is not only strong but “very strong” for him to infer that there was an intention to influence the Respondent in official functions is unequivocal acknowledgement that the evidence led by the prosecution had established a prima facie case.

Counsel for the Appellant submitted that the learned trial judge was led into error in his ruling because he conflicted the standard of proof required at the stage of no case submission with that to be applied at the end of the trial. The case of ABRU VS. STATE (2012) ALL FWLR (PT. 606) 536 was relied on. The Appellant’s Counsel also argued that the trial judge in general demonstrated throughout the trial and the impugned ruling, a misapprehension of what amounts to damaging cross-examination.

Finally, it was submitted that the trial judge unabashedly entertained and considered defence advanced by the Respondent and his

co-defendants at every turn for the purpose of making a final decision on the evidence presented by the prosecution.

On count 2, Counsel for the Appellant argued that the elements of the offence are:
i. That the person sought to be influence was acting in a judicial capacity.
ii. That he was in fact induced or influenced by some reward or act
iii. That he was so induced or influenced in the course of his judicial function.

Counsel then argued that the distinct role of each of the 3 Defendant is clearly discernible in the evidence led by PW8, PW9, PW15 and PW16 that the 3rd Defendant who desired favourable orders from the Respondent paid the sum of N30,000,000 into the Respondent’s wife’s account. It was then argued that the trial judge’s finding on page 863 is a strong indication that the prosecution made out a prima facie case in respect of count 2.

The Appellant’s counsel also argued that the trial judge cannot hold that the Appellant did not prove that the money was not transferred to the Respondent on the one hand while on the other hand submit that the money was a gift to be passed through the 3rd

Defendant for the Respondent’s daughter’s wedding. Additionally, counsel submitted that the trial judge’s contention that the Appellant failed to provide sufficient particulars and therefore label the count defeated is wrong by the case of OKPA VS. STATE (2017) 15 NWLR (PT. 1587) and Sections 220 and 221 of the Administration of Criminal Justice Act.

As it relates to count 10, counsel submitted that the evidence of PW2, PW3 and PW13 was adduced in respect of the count. It was submitted that the Respondent’s salaries and emoluments contained in Exhibit LL are not up to Twenty Million Naira per annum but the Respondent had 54 Million Naira cash, $121,279 and other foreign currencies were found. Even with the findings above, it was argued that there was no evidence that the sums above were withdrawn from the Respondent’s account despite debits of N175 Million made to Don Parker Properties. The arguments for this count were submitted for counts Eleven and Twelve.

Concerning Count 13, Counsel for the Appellant submitted that the prosecution called PW6 Dr. Sani Shaibu Teidi, PW7 and Hajia Fatima Sani Teidi who both testified

that a Kingsley O. called to demand for N25 Million Naira for PW6 to be released from his prison after an onerous bail condition set by the Respondent which lead to an NJC investigation and the Court of Appeal to review the bail conditions and transfer the case. While Achi Kevin (UBA staff) PW17 verified that the account sent by Kingsley O. is in existence and tendered Mr. Kingsley O’s statement of account.

As it relates to count 14, Counsel for the Appellant submitted that the trial judge did not consider the evidence in this count but stated that he had considered the evidence in another count which relates to the 3rd Defendant. It was then argued that the Appellant in proof of this count, called PW16 and PW1 who led evidence to the effect that the 3rd Defendant bought a car for the Respondent’s son and it was delivered to the Respondent’s house in Lagos at the time the 3rd Respondent had cases before the Respondent which ended in the 3rd Respondent’s favour. Furthermore, the evidence of both PW1 and PW16 that the notice of the proposed purchase was sent via email to the Respondent and he consented to the transaction was not

controverted and the 3rd Defendant by Exhibit XX said he informed the Respondent that he bought a car for Aramide and he acquiesced.

In arguing count 15, Counsel went through the evidence adduced by PW2, PW11 and PW14 and submitted that the Respondent was found to be in possession of Pump Action Rifle without a license as the license had expired on 31st December 2015 without it being renewed. It was then submitted that PW16 testified on page 784 that the Respondent said he had renewed it and was going to furnish the renewal but it never did but when the Respondent was cross-examining PW16, the renewed license was tendered through him as Exhibit DDD. Counsel then argued that the said Exhibit DDD which the trial judge accorded much weight to must be treated with extreme suspicion because:
i. Exhibit DDD is for all practical purposes a fresh license procured for the Respondent’s gun while he was in custody of DSS
ii. A fresh gun license and renewal are issued only on production of the gun itself at the licensing office
iii. A renewal is affixed to the original booklet as Exhibit JJ. A new booklet is not issued when renewing the old gun

license.
iv. Significantly, the Respondent lied by answering No to the question 9 on the application form for Exhibit DDD.

Counsel thereafter submitted that from December 2015 until 7th October, 2016, the Respondent violated Regulation 9(1)(a) of the Firearms Regulations. This it was argued was because the license cannot operate in retrospect and the case of STATE VS. OLADOKUN (2011) NWLR (PT. 1256) 542 was relied on to state what the prosecution must establish for unlawful possession of firearms. In sum, it was argued that a prima facie case was made out against the Respondent and he needs to explain why he did not renew the license, why he made another license and for lying in his application that he never had a gun license before October 2017.

The arguments made for count 15 were adopted for count 16. Additionally, Counsel for the Appellant submitted that License are renewed in the same booklet as shown in Exhibit JJ for 2014 – 2015 and there is no way the renewal in Exhibits DDD and EEE can be older than the original expired license Exhibit JJ as to bear the dates 10th October, 2010. It was argued that the above was either a forgery

or was arranged to meet the exigencies of this case and such renewal cannot have a retrospective date and an actual date of 12th and 20th October, 2016. Given the arguments above, Counsel submitted that the Respondent has to explain the discrepancies which he can only provide if he testifies. The case of BILLE VS. STATE (2016) 15 NWLR (PT. 536) 363 was relied on to submit that the onus is on the Defendant to justify in law by positive proof that he has a license issued by appropriate authority.

Count 17 was argued to the effect that Regulation 3(1) of the Firearms Regulation states that a license shall unless forfeited, remain in operation until 31st December of the year it was granted while Regulation 9 provides that whenever a license has not been renewed, the firearm and ammunition must be deposited in a public armory. Based on the above, it was argued that the fire arm and the 35 (live) cartridges were not deposited at the public armory as such the Respondent by holding on to the guns and ammunitions has done so illegally in the circumstance.

For count 18 the prosecution argued that the Respondent gave false information to a public officer in

that he falsely told PW16 that one pump action gun in his possession belonged to Hon. Justice A. R. Mohammed. It was argued that PW16 testified that Hon. Justice A. R. Mohammed denied ownership of the firearm but when cross-examined PW16 said Hon. Justice A. R. Mohammed said he was approached by a gun dealer who said he would supply the firearm. Counsel then stated and posed several questions that the Respondent needs to provide to rebut the denial of Hon. Justice A. R. Mohammed. It was argued that the Respondent is yet to offer any explanation as to the ownership of the gun besides merely stating in Exhibit QQ that the gun belongs to Hon. Justice A. R. Mohammed. Additionally, that the Respondent needs to explain who asked him to make Exhibit W, JJ and EEE and show why he should not be taken as having given false information.

In arguing issue two, counsel for the Appellant relying on EGHAREVBA VS. FRN (2016) 10 NWLR (PT. 1521) 431 submitted that the trial judge went overboard and was wrong to have delved into the facts of the case and considered the defence raised by the Respondent at the stage of no case submission when the threshold of proof required

of the prosecutor was merely to establish a prima face case against the Defendants. It was also submitted that in doing the above, the trial judge raised the threshold of proof required by the prosecution which occasioned a miscarriage of justice.

Counsel then argued that the treatment of PW16’s compelling oral evidence by the trial Court shows that he did not only delve into facts and ascribed probative value to PW16’s evidence but went the extra mile to label him a hostile witness. The trial judge’s ruling on pages 860 and 862 were reproduced to support the assertion. Finally, relying on BLAISE V FRN (2017) 6 NWLR (Pt. 1560) 90, Counsel submitted that the trial judge went beyond the permissible latitude at the stage of the case which occasioned a miscarriage of justice.

As it relates to issue three, the Appellant’s counsel argued that Sections 53 and 60 are intended to address the penchant of person accused of corruption from raising the defence of custom in order to escape the noose of the law. It was further argued that while Section 60 expressly states evidence of custom is inadmissible as a defence, Section 53 raises a

presumption of corrupt acceptance in cases of gratification. Counsel then argued that the Defendant’s defence stating that the 30,000,000 naira is a gift from his friends towards the Respondent’s daughter’s wedding is on grounds of law, untenable, having regard to Section 60 of the Corrupt Practice and Other Related Offences Act 2000.

Furthermore, that the learned trial judge was wrong to hold on page 869 of the record of appeal that Sections 53 and 60 of the Corrupt Practice and Other Related Offences Act 2000 are in conflict with Section 36(5) of the Constitution and therefore void.

Counsel for the Appellant as it relates to issue four called on the Court to take judicial notice of the press release which appeared in a notable national newspaper to the effect that a petition had been filed against the trial judge and was only recently dismissed though unresolved by reason of a withdrawal of the said petition. Counsel argued that the trial judge at all material times during the adjudicatory process knew there was a petition before the National Judicial Council but did not disclose to parties prior to assumption of jurisdiction and

adjudication over this case.

It was argued that the Appellant was thus deprived of the opportunity to reasonably evaluate the risks involved which may affect the Court’s ability to ensure just, free and fair evaluation of all evidence. Additionally, counsel argued that the integrity and sanctity of the entire adjudicatory process as carried out by the Court stands tainted and vitiated.

Counsel for the Appellant also argued that he seriously doubts and has strong basis to entertain reservations as to whether in the circumstances justice was done or seen to be done and the following reservations are given flesh by:
i. The Court was anxious to start and conclude the prosecution case despite obvious constraints. For example, on 17 January, 2017 the lead prosecution counsel informed the Court, after calling two witnesses, that the third witness Mr Teidi was not in Court because he had been attacked by a gang of assassins at his home in Abuja at 2am earlier that morning. Rather than empathize with prosecution or order an investigation as requested, the learned trial judge threatened to “do the needful” if the witness was not

brought to Court the next day. This comment and fury of the learned trial judge was widely reported in the newspapers of the next day but does not appear on the record. The tepid ruling made on the application for adjournment appears at page 611 of the record.
ii. He trivialized and mocked the proceedings by the comments made on critical issues.

Counsel while relying on the cases of MOSHOOD ABIOLA VS. FRN (1995) LPELR – 41 (SC); ONIGBEDE VS. BALOGUN (2002) FWLR (PT. 99) 1062 and AKOH VS. ABUH (1998) 3 NWLR (PT. 85) 696, argued that should there be any vitiating features operative at any stage of the proceedings even if just before or at the stage of judgment, then automatically such proceedings and all subsequent steps taken by the Court in furtherance or reliance thereon is vitiated and rendered a nullity.

In the Respondent’s brief of argument as settled by his counsel Dr. Onyechi Ikpeazu dated 6th October, 2020 and filed on the 7th October, 2020, the following issues for determination were distilled from the grounds of appeal thus:
i. Whether the learned trial judge duly applied the principle governing the consideration of a

no-case submission and was right in holding that the Appellant did not make out a prima facie case in Counts 1, 2, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the charge, to warrant the Respondent to be called to enter a defence. (Ground 1, 4, 5, 7 and 12)
ii. Whether the learned trial judge denied the Appellant, the right of fair hearing. (Ground 2 and 14)
iii. Whether the learned trial judge was correct in his interpretation and application of Sections 53 and 60 of the Corrupt Practices and Other Related Offences Act, 2000 (as amended) (Ground 8).

In arguing issue one, Counsel for the Respondent argued that the trial judge was duly guided by the principles governing a no-case submission and did not in his determination exceed the defined territory. It was then argued that the Appellant ignored the determination made by trial Court and the import of Sections 302 and 303 of ACJA. Counsel then argued that the scope of the two sections is wider than the circumscribed approach being urged by the Appellant. Additionally, that the sections call on the Court to consider the evidence against the defendant and determine if it is sufficient to justify the

continuation of the trial.

Counsel relying on the case of AITUMA VS. STATE (2006) 10 NWLR (PT. 989) 452 submitted that the criterion the Court will take into account is the evidence led before it and determine whether the essential elements of the alleged offence were disclosed. Counsel also relied on a plethora of cases including ONAGORUWA VS. STATE (1993) 7 NWLR (PT. 303) 40; IKOMI VS. STATE (1986) 3 NWLR (PT. 28) 340; AKPAN VS. THE STATE (1986) 5 SC 186 and IGABELE VS. THE STATE (2005) 1 NCC 59.

Counsel then argued that it is not for the Respondent to offer evidence to prove that the sums of money alluded to in the charge were products of unlawful acts or corrupt practices but for the Appellant to offer cogent evidence which prima facie establish that offences had been committed by the Respondent. It was also submitted that a dispassionate appraisal of the ruling will show that the trial judge did not express any belief or disbelief with respect to the evidence before him.

With respect to count 1, counsel for the Respondent argued that the Appellant’s permutation as it relates to count one was founded on sheer misrepresentation of facts

and the 2nd Defendant never made the admission ascribed to her. Furthermore, that the nisi order in Exhibit KKK was to the effect that 20% of the judgment debt should be deducted at source and be paid to the 1st Plaintiff through its solicitors Joe Agi, SAN being agreed consultancy fee of the 1st Plaintiff for services rendered to other Plaintiffs. Additionally, it was argued that the statement of a co-defendant cannot represent evidence against the Respondent at the stage of a no-case submission and the cases of MUMINI VS. THE STATE (1975) 6 SC 66 and AJAEGBO VS. STATE (2018) LPELR – 44531 (SC) was relied on. It was then argued that the statements of the co-defendants and what resulted from investigation of same cannot constitute evidence against the Respondent at that stage of the proceedings.

As it relates to Count 2, counsel argued that nowhere in the record of appeal did the Appellant either by direct or circumstantial evidence establish that the Respondent instructed the 3rd Defendant to pay any money to the 2nd Defendant. It was then argued that uncanny extract misquoted from the ruling totally presented a jaundiced view of the decision of

the lower Court. Counsel then submitted that the trial judge did not prevaricate when he found that PW16 explicitly stated that there was no link between the sum N30,000,000 and any case pending before the Respondent.

It was then submitted that the Appellant cannot extricate itself from the debilitating effect on the case of the evidence of its PW16 who was their star witness. Additionally, it was submitted that PW16 was presented with the documents to show that the alleged link between the cumulative sum of N30,000,000 and cases pending before the Respondent was an illusion to which he conceded. Furthermore, it was submitted that PW16 proceeded to categorically state that the case of the Appellant was spearheaded on inadequate facts which negated the proof of the essential elements of the offences charged.

Counsel for the Respondent then gave an account of PW16’s testimony, his cross examination and documents tendered including Exhibits VV – VV5, WW – WW2, III, JJJ, KKK, LLL and MMM. It was then submitted that PW16 was categorical that the Appellant’s case was based on incomplete knowledge and that:

Respondent did not, contrary to the Appellant’s claim, unilaterally take the case from Calabar to Abuja in pursuit of a scheme with the 3rd Defendant;
ii. Respondent made the Garnishee Order with the consent of the judgment debtors;
iii. Respondent made the Order in Exhibit MMM against the 3rd Defendant after lodgment of the last tranche of N10,000,000 into his wife’s account by the 3rd Defendant.

Additionally, it was argued that the postulation of the Appellant on which their case was founded was a fleeting illusion and mere witch hunt. Further, counsel argued that in all, the trial judge did not disbelieve the Appellant’s witnesses but rather relied on and accepted the evidence presented by them, especially the PW16.

For count 10, Counsel for the Respondent submitted that the most essential ingredients of the offence are:
i. Respondent is a public servant
ii. That these sums of money were gratification received in the process of exercising his duties as a judge.

Counsel then argued that apart from mentioning the various sums of money in the count, it did not mention any unlawful act to which the sums of money relates.

It was then argued that the bottom line is whether the sums of money were gratification corruptly received by the Respondent in order to exercise the duties of his office. Additionally, it was argued that PW16 gave particulars of how he gained the money and it was for the prosecution during the process of investigation to establish that the sources of money were criminal.

However, according to Counsel for the Respondent PW16, PW2 and other witnesses acknowledged that the Respondent had valid access to huge sums of money in foreign currency. In sum, counsel submitted that if nobody stated the sums of money was illegally given to the Respondent, then is the Respondent required to mount the witness box and start explaining when no prima facie case to the effect that sums of money formed part of an unlawful act?

As it relates to count 11, Counsel for the Respondent argued that no unlawful act was specified the fact of which rendered the count defective. It was then argued that PW13 gave evidence to the effect that Exhibit LL did not cover the various sources of incomes and the Respondent’s years as a successful lawyer before he became a judge.

Additionally, it was submitted that in terms of prima facie case, it is clear that no unlawful act was proved which led to the expenditure of N85,000,000 as payment towards the purchase of a house. Further it was argued that the ingredients of an offence are not just the actus reus but the mens rea must be proved beyond reasonable doubt especially at this stage of the proceedings. The arguments of count 11 were adopted for count 12.

For count 13, Counsel argued that looking at the evidence of PW7, nowhere did she state in Court that the Respondent made any demand on her for the sum of N25,000,000 and that she concluded that maybe the said Kingsley O. was relating with the judge, it cannot be prima facie. While the testimony of PW6 was that all he knew was what his wife told him. Additionally, that the number of Kingsley O. was known yet there was no confirmation of any contact between him and PW7. Further, that the Appellant was in custody of the Respondent’s telephone and would have established the link with Kingsley O. as such no link was established with the effect that there was no prima facie evidence. As to the evidence of PW16, it was argued

that though he claimed that some forfeitures order was made vindictively by the Respondent against the interest of PW6 there was no proof of the order produced. Also it was argued that it was inconceivable how the Respondent can be accused of an offence over an act which was initiated by the Complainant who is enjoying the advantage.

In arguing count 14, Counsel submitted that the evidence led through PW1 and PW16 was to the effect that the 3rd Defendant paid the purchase price of BMW 300i for which the vehicle was for Aramide Ademola. It was also argued that PW16 talked about documents which he said he harvested from the Respondent’s I-pad but never tendered such documents which make the statements hearsay. Additionally, that PW1 was emphatic that for the duration of the transaction, that the Respondent was not involved in the transaction. Further it was argued that there was no proof that any proceedings relied upon by the Prosecution was pending before the Respondent in December 2014 and 5th January, 2015 when the transaction was commenced and concluded.

As it relates to count 15, Counsel argued that it is clear that the issue of firearms

is an issue which the law clearly delegated to the police. It was also argued that it is the police who have the right in a situation such as this to demand for the production of the license and in doing so, gives a reasonable time to the person to produce such valid license. Additionally, that Firearms Act did not vest any such authority on the DSS and they cannot circumvent the provisions of Sections 28 and 29 of the Firearms Act. The cases of NJC VS. JUSTICE SENLONG (2010) LPELR – 4582 and N. D. C. LTD VS. A. S. W. B. (2008) 9 NWLR (PT. 1083) were relied on.

Counsel for the Respondent also argued that PW16 while under cross-examination acknowledged that Exhibit JJ are the licenses for the guns found in the possession of the Respondent and issued by the police for the period of 2016 – 2018. The Respondent’s Counsel then argued that by Regulation 3 of the Firearm Regulations, licenses expire in the last date of the year as such, by Exhibit DDD and EEE the entire 2016 and not just part of it was renewed. Additionally, it was argued that Section 3 is an offence on which the culprit will be convicted where he fails to have in his

possession a license or to produce same within a reasonable time.

For Count 16, Counsel adopted the arguments of count 15. Counsel also submitted that there was no prima facie case made out as the possession of firearms by the Respondent was duly explained by PW16 himself. It was therefore argued that no explanation is further required from the Respondent in this regard.

With regard to Count 17, Counsel submitted that a perusal of Exhibit JJ, DDD and EEE will clearly disclose that the Respondent was licensed to have in his possession, cartridges in excess of the amount in his possession. Counsel then adopted the arguments proffered in counts 15 and 16 and contended that no prima facie was made out to warrant the Respondent to be called to enter a defence.

Finally, as it relates to count 18, counsel argued that Hon. Justice A. R. Mohammed was not called to give evidence. It was then argued that his evidence would have established his alleged denial of ownership of the gun. Counsel then submitted that the effect of the above is that:
i. No admissible evidence was led at all on any denial by Justice A. R. Mohammed to the effect that the gun

did not belong to him
ii. The only evidence which could have gone to counter the assertion of the Respondent was deliberately withheld from the Court by the Appellant/Prosecution.
iii. The consequences of the withholding of this most vital evidence which would have at least attempted to counter the statement of the Respondent or rendered same false, is that the Court would presume that the evidence will be unfavourable to the Appellant.

The Respondent’s Counsel then submitted that the law is trite that the burden of production of evidence rests on the party who will fail if no evidence was called from either side. The cases of C. O. P. VS. OGUNTAYO (1993) 6 NWLR (PT. 299) 259; NWODO VS. STATE (1991) 4 NWLR (PT. 185) 341 and OGUNJOBI VS. THE STATE (1993) 8 NWLR (PT. 313) 602 were referred to.

As it relates to issue two, Counsel for the Respondent submitted that the Appellant’s allegation that the trial judge had a similar case before the National Judicial Council is an invitation for the Court to speculate. It was argued that no such case was presented before the Court and it is not the duty of a Court to speculate and the

cases of IKENTA BEST (NIG) LTD VS. A. G. RIVERS STATE (2008) 1 NWLR (PT. 1084) 612 and EJEZIE VS. ANUWU (2008) 12 NWLR (PT. 1101) 446 were relied on.

Counsel for the Respondent then submitted that the Appellant’s arguments of favoritism are not justified by a dispassionate appraisal of the record as well as the ruling. Counsel then argued that the contention in paragraph 15.05(a) and 15.05(b) to the effect that matters reported in the unspecified newspaper were not reflected in the record of Court is an attack on the record of proceeding. It was also argued that the comments in paragraph 15(ii) and (iii) of the Appellant’s brief of argument were not appealed, therefore they are deemed accepted by the Appellant and the brief is not a proper forum to raise issues of law or mixed law and facts on matters not appealed.

With regards to issue three, counsel for the Respondents submitted that the Appellant did not appeal the decision of the lower Court declaring Sections 53 and 60 of the Corrupt Practices and Other Related Offences Act 2000 void and inconsistent with Section 36(5) of the Constitution and as such, ground 8 of the appeal is

essentially academic.

Counsel then argued that to prove the N30,000,000 was received as gratification, the Appellant must first establish a prima facie case that the sum of N30,000,000 was with respect to particular cases pending before the Respondent. It was argued that the only set of cases tendered as Exhibits VV and WW3 were those which PW16 said were not linked to the alleged gratification.

The Respondent’s Counsel submitted that Section 53 of the Corrupt Practices and Other Related Offences Act 2000 shows that:
i. There must be proof that gratification has been accepted etc.
ii. If proved, a presumption that it was corruptly received will be raised with respect to the particulars of the offence.

It was argued that gratification is not simply the reception of a sum of money but a felonious intent must be shown to establish prima facie. Counsel then reproduced Section 2 of the Corrupt Practices and Other Related Offences Act 2000 and argued that the Appellant must establish that the payment of the sum of N30,000,000 was wrongful. It was then argued that there must be a link to influencing a person in the performance of his

duty and that the presumption invoked must relate to only after a felonious intent had been established devoid of agency as a defence. Additionally, it was submitted that no law can place a burden on a defendant in a criminal case contrary to Section 36(5) of the Constitution.

Finally, the Respondent’s Counsel submitted that the evidence of the prosecution witness was to the effect that they did not find out that any money proceeded from the 2nd Respondent’s account to the Appellant’s. In his final remarks Counsel stated that the law in Section 53 states that any gratification has been accepted not any money has been accepted. As money must be proved to constitute “gratification” before the presumption may arise.

MAIN JUDGMENT
I have adopted the following issues for the determination of this appeal:
i. Whether the learned trial judge was right in holding that the Appellant had not made out a prima facie case on counts 1, 2, 10, 11, 12, 13, 14, 15, 16, 17 and 18 against the Respondent warranting his being called upon to enter a defence.
ii. Whether in considering the Respondent’s no case submission

the learned trial judge was right to delve into the merits of the case by ascribing probative value to the evidence of witnesses and assessing their credibility.
iii. Whether the learned trial judge was right in holding that Sections 53 and 60 of the Corrupt Practice and Other Related Offences Act do not apply to counts 1 – 5 of the information.
iv. Whether the learned trial judge was right to preside over the case against the Respondent when he had a pending similar complaint before the National Judicial Council.

ISSUE ONE
This issue relates to whether the learned trial judge was right in holding that the Appellant had not made out a prima facie case on counts 1, 2, 10, 11, 12, 13, 14, 15, 16, 17 and 18 against the Respondent warranting his being called upon to enter a defence.
The law is trite that a Court or the Defendant who contends that at the end of the case of the prosecution, the prosecution has not established the essential ingredients of the offence or that there is no evidence linking the Defendant with the commission of the offence or the evidence so far led is such that no reasonable Court will convict, can by the

provisions of Sections 302 and 303 of the Administration of Criminal Justice Act, 2015 (ACJA) make a no case submission. While under Section 357 of ACJA a Defendant can be discharged where a Court finds that a case is not made out against the Defendant to sufficiently require him to put in his defence. In essence, the Court will discharge a Defendant if the no case submission is upheld.
Now, the law as it relates to no case submission is not whether the evidence against the accused is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring at least some explanation from the Defendant. In the case of AJIBOYE & ANOR VS. STATE (1995) LPELR – 300 (SC) it was held that:
“It is also settled by a plethora of authorities that a submission of “no-case” to answer may be properly made and upheld in the following circumstance as correctly stated by the lower Courts:
1. When there has been no evidence to prove an essential element in the alleged offence;
2. When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so

manifestly unreliable that no reasonable tribunal could safely convict on it.”
However, in any case where there is even slight evidence linking a Defendant with the commission of the offence charged, the case ought to proceed for the Defendant to explain his own side of the matter. See ADEYEMI VS. THE STATE (1991) 7 SC (PT. 11) 1.
So what then is a prima facie case for which the prosecution must prove? A prima facie case has been held to mean a case in which there is evidence which will suffice to support the allegation made in it and which will stand unless there is evidence to rebut the allegation. See AJIDAGBA & ORS VS. I.G.P. (1958) 3 FSC 5; (1958) SCNLR 60; OKORO VS. THE STATE (1988) 5 NWLR (PT. 94) 255; ADEYEMI VS. THE STATE (1991) 6 NWLR (PT. 195) 1.

Having stated the above laws, can it be said that the Appellant who was the prosecution in the lower Court have established a prima facie case as it relates to counts 1, 2, 10, 11, 12, 13, 14, 15, 16, 17 and 18 which would warrant the Respondent to put in his defence?

In answering the question above, recourse must be had to the evidence adduced by the witnesses in the case. I

will start with count one which was drafted thus:
Conspiracy to influence the course of justice contrary to Section 97 of the Penal Code Act, Cap 532 Laws of the Federal Capital Territory of Nigeria Vol. 4 2007 and punishable under Section 97 of the same law.

This count was rightly summarized by the trial judge thus:
“The Defendants between 11th March 2015 and 26th March 2015 within the Court’s jurisdiction conspired to influence the 1st Defendant in the course of his official functions as a Judge of the Federal High Court with a sum of N30,000,000.00 (30 Million Naira) and thereby committed an offence contrary to Section 97 of the Penal Code Law.”

To prove count one which relates to conspiracy to influence the course of justice, the Appellant presented the evidence of PW8, PW9 and PW16. Counsel for the Appellant submitted that though there is no direct evidence of where the Respondent and his co-defendants met to conceive the agreement as in all cases of conspiracy, the Appellant had adduced sufficient evidence for the learned trial judge to infer the conspiracy.
Indeed, in most cases of conspiracy it is a

matter of inference, deduced from certain criminal acts of parties done in pursuance of an apparent criminal purpose between the parties. Essentially, conspiracy is seldom proved by direct evidence but by circumstantial evidence and inferences from proven acts. See FOLORUNSHO ALUFOHAI VS. THE STATE (2014) LPELR – 24215 (SC) and DAVID OMOTOLA & ORS VS. THE STATE (2009) LPELR – 2663 (SC).

I have reviewed the arguments of counsel and the judgment of the lower Court and I agree with the trial judge that the Appellant has not proved a prima facie case against the Respondent on conspiracy. The Appellant’s case was that the 1st to 3rd Defendants conspired to influence the Respondent in the course of his official functions with the sum of N30,000,000 in three tranches paid to the 2nd Defendant’s account and that the Respondent granted the Nisi Orders in favour of the 3rd Defendant with regard to two cases shortly before the 3rd Defendant presented a car gift to the Respondent’s son.

It was the Appellant’s case that the last N10,000,000 payment was made a day before a garnishee order nisi in excess of 637M was granted

by the Respondent. It was also the case of the Appellant that 5 days later, another order of $3.1 Billion was made in favour of the 3rd Defendant’s client again. Additionally, it was the case of the Appellant that the two cases were filed by the 3rd Defendant in Calabar before the Respondent but were transferred to Abuja again before the Respondent’s Court.

agreement is called a criminal conspiracy. (2) Notwithstanding the provisions of Subsection (1); no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to that agreement in pursuance thereof. The import of the provisions of Section 96 supra has been considered in a long line of cases including Chianugo v. The State (2002) 2 NWLR (pt. 750) 225 at 236 para.A.; Obiakor v. The State (2002) 10 NWLR (pt. 776) 612 at 628; Upahar v. The State (2003) 6 NWLR (pt. 816) 23 at 262 and Idi v. Yau (2001) 10 NWLR (pt. 722) 640 at 651 and 658. These cases in summary establish that to secure the conviction of an accused on a charge of conspiracy it must be proved beyond reasonable doubt that: (1) The agreement to commit an offence – an illegal act is between two or more persons. (2) That the said act apart from the agreement itself must be express in furtherance of the agreement.”
Flowing from the case above, the elements that the Appellant must establish therefore are:
i. An agreement by the defendant to influence the Respondent in the course of his

functions as a judge with the sum of N30,000,000
ii. That one or more of the Defendants carried out the illegal act in furtherance of the agreement.

From the evidence adduced by the Appellant’s witnesses, there was no transfer of money (i.e. N30,000,000 or three tranches of N10,000,000) to the Respondent’s account. Since the ingredient states that there was the giving of N30,000,000 in furtherance of influencing the Respondent in the course of his official functions as a judge and there is nothing to show that the said N30,000,000 was actually transferred to the account of the Respondent by the 2nd or 3rd Defendants. How then can it be said that the Respondent was given N30,000,000 to influence the course of justice.

Having stated the above, even the alleged N30,000,000 sent to the 2nd Defendant’s account by the 3rd Defendant was said to be a gift from the Respondent’s friends abroad. To the claim of the N30,000,000 being a gift, the PW16 gave evidence that he contacted both Mr. Hubert and Mr. Bassey who both confirmed that they instructed the 3rd Defendant to gift the sum of $150,000 to the Respondent for his

daughter’s wedding. PW16 also gave evidence to the effect that both Mr. Hubert and Mr. Bassey or the companies did not have any pending cases before the Respondent nor was there a link between the two men and the two cases of FRIDAY UKPONG VS. THE CHIEF OF NAVAL STAFF and LINAS INTERNATIONAL LTD.

Furthermore, even the alleged cases that the Appellant claimed resurfaced in Abuja from Calabar by the Respondentâs doing was shown to be false through Exhibit III and JJJ. The PW16 who was the Investigating Officer when shown Exhibit III, the enrollment order by Justice E. A. Obile and Exhibit JJJ the letter of transfer of the case, stated that he just got to know how the case was transferred. (See page 811 of the record of appeal).

As it relates to the Garnishee Orders themselves, PW16 on page 810 of the record of appeal testified that the FRIDAY UKPONG VS. THE CHIEF OF NAVAL STAFF case has nothing to do with the N30,000,000 deposited as the case was in 2014 while the lodgments were in 2015. As to the Garnishee Orders in LINAS INTERNATIONAL LTD in Suit FHC/ABJ/CA/130/13, PW16 testified that his investigation did not reveal that before the

garnishee orders, there was a judgment which was not appealed on the 3rd of December 2013 as shown in Exhibit KKK and that the Attorney General gave consent for execution to be levied. (See page 812 of the record of appeal). On page 814 of the Record of Appeal, PW16 stated that the Order in Exhibit MMM was against the interest of the 3rd Defendant who would not obviously pay for orders to be made against him.

To my mind and from all the evidence adduced above, no prima facie case was established against the Respondent to warrant the Respondent to put in his defence. The Courts cannot rightly infer that there was any conspiracy to influence the Respondent in course of justice with the payment of N30,000,000 when the said N30,000,000 by the evidence of PW16, the investigating officer was truly a gift from Mr. Hubert and Mr. Bassey. PW16 even stated that he was acting on incomplete knowledge and information at the end of cross-examination.

As it relates to count two which states:
Influencing the Course of Justice contrary to Section 182 of the Penal Code Act, Cap 532 Laws of the Federal Capital Territory of Nigeria Vol. 4 2007 and

Punishable under Section 182 of the same law.”
The offence was summarized by the trial judge thus:
“The three Defendants between 11th March and 26th March 2015 within the jurisdiction of the Court influenced the 1st Defendant in the course of his official functions as a Judge of the Federal High Court with the sum of N30,000,000 and thereby committed an offence contrary to Section 97 of the Penal Code.”
The prosecution relied on the evidence of PW8, PW9, PW15 and PW16. I agree with counsel for the Appellant that the elements of the offence in Section 182 of the Penal Code are:
i. That the person sought to be influenced was acting in a judicial capacity
ii. That he was in fact induced or influenced by some reward or act
iii. That he was so induced or influenced in the course of his judicial function.

Has the Appellant actually established any of the elements in this count? Again, I will have recourse to the evidence adduced by the witnesses in the case particularly that of PW8, PW9, PW15 and PW16. A critical examination of all the evidence especially that of PW16 adduced under this count by the

prosecution reveals that it was heavily discredited under the fire of cross-examination. PW15 said he was not the investigating officer but that he took the statement of the 2nd Defendant in whose account the alleged gratification was paid. While PW16 the investigating officer stated that he was not the person that took the statement of the 2nd Defendant. PW9 also testified that he did not know the purpose of the money transferred neither did he know where the transfer came from. PW9 also testified that there was no transfer from the account of the 2nd Defendant to that of the Respondent. Also, as I have stated in issue one above, PW16 gave evidence to the effect that his investigation found that it was true that Mr. HUBERT and Mr. BASSEY who were the friends of the Respondent sent $150,000 (Dollars) to Respondent and that the two men did not have any case before Respondent. So also, through the evidence of PW16 it was established that all the cases the prosecution put forward as those suspected to have been influenced by the Respondent and his co-defendants were shown to be false. In essence, as the evidence stands, no cases in respect of which gratification

was allegedly given to influence the course of justice was proved. As such, no prima facie case was established against the Respondent and no reasonable tribunal or Court can convict on it.

Count 10 relates to the Respondent on the 7th October, 2016 within the jurisdiction of the Court in his capacity as a public servant holding in his possession the sums of N54, 000,000, $121,279, 4,400 Euro, 80pounds and 1,010 Rupees being gratifications received in the exercise of his functions as a judge of the Federal High Court and thereby committed an offence contrary to Section 24 of the Corrupt Practices and Other Related Offences Act 2000.
Section 24 of the Corrupt Practices and Other Related Offences Act 2000 states that:
“Any person who, whether within or outside Nigeria, whether directly or indirectly, whether on behalf of himself or on behalf of any other person, enters into, or causes to be entered into, any dealing in relation to any property, or otherwise uses or causes to be used, or holds, receives, or conceals any property or any part thereof which was the subject-matter of an offence under Sections 10, 11, 13, 14, 15, 16, 17, 18, 19,

and 20 shall be guilty of an offence and shall on conviction be liable to imprisonment for a term not exceeding five (5) years.”
The elements of this offence are that the Defendant in his capacity as a judge of the Federal High Court:
i. Through himself entered into a dealing in relation to a property;
ii. He held, received, concealed the property;
iii. The property is matter of an offence under Sections 10 – 20.

From the prosecution’s case it can be deciphered that the Respondent is a public servant and that the sums of moneys found in his possession are gratification received in the process of exercising his functions as a judge exemplified in the various awards made in favour of the 3rd Defendant. The Prosecution relied on the evidence of PW2, PW11 and PW13 in aid of the charge.

In order to ascertain whether a prima facie case was established we must look at what the testimonies of the witnesses disclosed. The relevant part of PW2’s testimony was to the effect that he led the search operation at No. 30B S. O. Ogbemudia Crescent, Zone E, Apo Legislative Quarters the Residence of A. F. A. Ademola and that

during the search they found various sums of money which were N39,500,000, N8,500,000, N6,000,000, $121,279, 4,400 Euros, £80 and 1,010 Rupees which he took inventory of. Under cross-examination, he said nobody complained to them that they lost the various sums of money found in the Respondent’s house. While the testimony of PW11 was that he took possession of the items gotten from the Respondent’s house. He tendered all the items from the search including the monies in evidence. Under cross-examination, he said he has attended courses outside Nigeria and goes with foreign currency which belongs to him thereafter.

PW13 on the other hand was the Chief Accountant of the Abuja Federal High Court. He tendered Exhibit LL which was the salaries and emoluments of the 1st Defendant. Under cross-examination, PW13 said Exhibit LL does not contain esta codes and allowances that the Respondent receives from externally funded conferences, workshops, seminars and others. So also under cross-examination, PW13 testified that Exhibit LL does not include the salaries, esta codes and allowances from 2004 – 2008. Also, that Exhibit LL does disclose

all sources of income of a judge. PW16 who was the investigating officer related to the N10,000,000 in three tranches paid into the 2nd Defendant’s account and the orders granted by the Respondent to the 3rd Defendant who made the said payments. As to the monies discovered, PW16 as stated by the trial judge, only mentioned them but did not state whether his investigations found that they were products of illegality. He did mention that the Respondent said the money was a conversion from foreign currencies to naira, accumulation of esta codes and family upkeep money meant for his children in the United Kingdom. In cross-examination, PW16 said judges who travel abroad for courses and programs are paid esta codes in pounds, dollars, Euros, Rupees etc.

From the evidence of the witnesses above, I strongly hold that it cannot be said that a prima facie case has been established to the effect that the Respondent was holding money received as gratification in exercise of his judicial functions. If a judge is entitled to esta codes in foreign currency which he can either hold in foreign currency or change into Naira as he sees fit, how then does money found

in the Respondent house amount to money gotten from gratification? A more pressing question is where is the evidence that the money gotten as gratification or any other illegal act under Sections 10 – 20 of the Corrupt Practices and Other Related Offences Act 2000? To my mind and in agreement with the trial judge, no reasonable Court would convict the Respondent on the basis of the evidence adduced by the prosecution in relation to count 10.

Count 11 and 12 charges the Respondent with transferring in his capacity as a public servant, the sum of N85,000,000 and N90,000,000 from his account with Guaranty Trust Bank to Don Franco Parks which sums of money form the proceed of an unlawful act and thereby committed an offence contrary to Section 24 of the Corrupt Practices and Other Related Offences Act 2000.
Section 24 and its ingredients has already been produced in count 10 above but the essential element of Section 24 is that the property held or received forms part of an illegal or unlawful act. Under these two counts, PW10 testified that he is a Guaranty Trust Bank staff, he tendered the Respondent’s account statement and testified that

on 24th of February 2014 there was a N90,000,000 debit to Don Parker Properties. Similarly, there was a debit to the same Don Parker Properties of N85,000,000. Under cross examination, he stated that there is nothing to show that the transaction was illegal. He also stated that he does not know any law that prohibits civil servants from paying for properties.

At this juncture, I would rely on the evidence adduced by PW13 and PW16 which I have reproduced in count 1 above. I would also add that PW13 under cross-examination stated that the Respondent has practiced for not less than 23 years from becoming a judge and it is reasonable to expect that he has some assets and investments. Additionally, the Ademola name is famous and a notorious family with plenty of inheritance, also nothing in the account department stops the Respondent from benefitting from his family inheritance. While PW16 in his testimony, stated that from the available evidence gathered during his investigation, the Respondent has other sources of income apart from his salaries as a judge.

Having regard to all the evidence of the witnesses, it cannot be said that the prosecution

proved that the N90,000,000 and N85,000,000 transferred by the Respondent to Don Parkers Property was proceed of an unlawful act. If they were, then what was the unlawful act? These monies were not proved to be gratification or from any illegal source. The evidence even provides various sources of income of the Respondent which shows that he can afford the sums in counts 11 and 12. No prima facie case was established as it relates to these counts too.

As it relates to count 13 which charges the Respondent for attempting to obtain gratification in the sum of N25,000,000 from one Sanni Shaibu Teidi as a motive for showing favour in the exercise of his official functions contrary to Section 115(b) of the Penal Code.
Section 115(b) of the Penal Code provides as follows:
“115. Whoever being or expecting to be a public officer accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification whatever whether pecuniary or otherwise, other than lawful remuneration, as a motive or reward-
(a) for doing or forbearing to do an official act, or
(b) for showing or forbearing

to show in the exercise of his official functions favour or disfavour to a person.”
The ingredients of the offence are:
i. That the accused was a public servant
ii. That he has, accepts or obtains or agrees to accept or attempts to obtain gratification from any person for himself or for any other person
iii. That the gratification was not legal numeration
iv. That he accepted the gratification as motive or reward for showing or forbearing to show in the exercise of his official functions favour or disfavour to a person.

The prosecution relied on the testimonies of PW6, PW7 and PW17. PW6 and PW7 both testified that one Kingsley O. kept contacting PW7 on the phone asking her to bring the sum of N25,000,000 so that the Respondent would approve the bail application. While PW17 a UBA bank staff testified that the account sent to PW7 was indeed one that belong to Kingsley O.

PW7 testified that on the eve of day the case was to come up, she would always get a call from one Kingsley O. and he would tell her what would happen in Court the next day which would always happen as he said. She testified that she saw him once in Wuse

Market and that he is known by the DSS. Additionally, the witness testified that several other people were calling her. While PW6 testified that he did not have personal contact with Kingsley O. but his wife did and she told him.

From the ingredient of the offence, it must be established that the Respondent himself attempted to obtain the gratification. Nothing in the evidence adduced from the testimony of the prosecution shows that this Kinsley O. was acting on the instruction of the Respondent or on behalf of the Respondent. One would expect that the prosecution would at least establish a link between the Respondent and this Kingsley O. but this was not done from the evidence adduced. Like the trial judge, I also find that no prima facie case was established on this count.

Count 14 charges the Respondent, a public servant with corruptly receiving from the 3rd Respondent a BMW Saloon 320i valued at 8,500,000 through his son as gratification in exercise of his official functions as a judge of the Federal High Court and thereby committed an offence contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000 provides thus:
(1) Any person who corruptly –
(a) accepts, obtains or agrees to accept or obtain or attempts to obtain from any person for himself or for any other person,
any gift or consideration as an inducement or reward for doing, forbearing to do, or for having done, or forborne to do, any act or thing.
The elements of the offence are:
i. The accused corruptly accepts, obtains or agrees to accept or obtain or attempts to obtain from any person for himself or for any other person
ii. The gift or consideration is an inducement or reward for doing, forbearing to do, or for having done, or forborne to do, any act or thing

On this count, the prosecution relied on the evidence of PW1 and PW16. PW1 categorically stated that sale of the car was between Coscharis Motors and Ademide Ademola. She further testified under cross-examination that Ademide Ademola negotiated the purchase and paid for his registration and insurance. She also testified that Ademide Ademola is an adult. PW16 did not adduce any evidence that showed the car gift was an

inducement to influence the Respondent in his official capacity as a judge. PW16 did testify that he found a profoma invoice forwarded to the Respondent from PW1 but same was not tendered by the witness.

In a nutshell as it relates to this count, there was no evidence adduced to demonstrate that the car purchased for the Respondent by the 3rd Defendant through his son was an inducement to perform judicial duties in any suit. In short the charge in this count was not linked to any cases that the 3rd Defendant had before the Respondent.

Counts 15, 16, 17 relate to the Respondent on the 7th of October 2016 being in illegal possession of two Pump Action Rifles and 35 rounds of ammunition without a valid license. Counts 15 and 16 are contrary to Section 3 of the Robbery and Firearms (Special Provision Act) 2004 while count 17 is contrary to Section 8 of the Firearms Act.
Section 3 of the Robbery and Firearms (Special Provision Act) 2004 provides:
(1) Any person having a firearm in his possession or under his control in contravention of the Firearms Act or any order made thereunder shall be guilty of an offence under this Act and shall upon

conviction under this Act be sentenced to a fine of twenty thousand naira or to imprisonment for a period of not less than ten years, or to both.
(2) For the avoidance of doubt, Section 28 of the Firearms Act shall, subject as provided in Section 12 (4) of this Act, have effect notwithstanding Subsection (1) of this section.
The basic ingredient to prove in this count is that the Respondent was in possession of the firearms and ammunitions on the said date without a valid license. The prosecution relied on the evidence of PW2, PW11, PW14 and PW16. PW2 testified that he recovered the two rifles with 35 rounds of ammunition and expired license. He further testified that the guns were registered to the Respondent and Hon Justice Mohammed. Under cross examination, he said the authority responsible for registration of firearms is the Nigerian Police and that licenses are renewable.

PW11 was the Exhibit Keeper who produced and testified that rifles were recovered from the Respondent’s residence. PW14 is a ballistician who gave oral and documentary evidence as an expert that the guns were firearms within the meaning of the relevant law. PW16

testified that he interviewed the Respondent who stated that men from the British High Commission and DSS advised some judges with sensitive anti-terrorism cases to procure firearms. That one firearm belonged to him while the other was for Hon. Justice A. R. Mohammed. Further that the rifles had expiry dates of December 2015 and the Respondent said he had renewed the license and would furnish him with same but he did not. He also interviewed Hon Justice A. R. Mohammed who said he was approached by a gun dealer recommended by the Respondent who offered to supply him with a gun for which he would pay later.

PW16 under cross-examination was shown Exhibit DDD and EEE and same was tendered through him. Upon review of all the arguments by the party, I agree with the arguments of the trial judge. First and foremost, these are exhibits tendered through the Prosecution who testified that the said Exhibits DDD and EEE are current licenses with respect to Exhibit V and W. Furthermore, I also agree with the trial judge that Sections 28 and 29 are applicable in this case. Especially, Section 29 which requires that reasonable time be given to a person to comply with

the provision of Section 28. That reasonable time is not defined by the Act and as such, the Exhibits DDD and EEE tendered can avail the Respondent. I also agree that by Section 168 of the Evidence Act 2011, there is a presumption of regularity. Indeed, being licenses issued by the Nigerian Police Force they are presumed to be regular.
Again, no prima facie case was established to warrant the Respondent to enter his defence.

Finally, as it relates to count 18 which provides that the Respondent gave false information contrary to Section 140 of the Penal Code. Essentially, the Respondent gave false information to the investigating officer when he stated that one Pump Action Rifle belonged to Hon. Justice A. R. Mohammed.
Section 140 of the Penal Code provides thus:
140. Whoever gives to a public officer an information which he knows or believes to be false, intending thereby to cause or knowing it to be likely that he will thereby cause the public officer-
(a) to do or to omit anything which the public officer ought not to do or omit if the true state of facts respecting such information is given were known by him; or
(b) to use

the lawful power of the public officer to the injury or annoyance of a person, shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to forty naira or with both.
The elements of the offence are that:
i. The information must be to a Public officer and it must be false
ii. The said false information must be made to the Public officer with the intention that he will act on such false information
iii. Or there must be the use of the power of the public officer against a person.

PW16 testified that the Respondent in his written statement claimed that one Pump Action Rifle belongs to Hon. Justice A. R. Mohammed but when he interviewed Hon. Justice A. R. Mohammed he denied ownership of the gun. However, under cross-examination the same PW16 said he came across Hon. Justice A. R. Mohammed and the picture of Exhibit JJ shows the person he interviewed. Furthermore, he testified that Hon. Justice A. R. Mohammed said he was approached by a dealer recommended by the Respondent who said he would provide him with firearm and he could pay later.

Given this PW16’s testimony under

cross-examination above, it cannot be held that the Respondent gave false information. The trial judge in his ruling said and I concur that:
“Given the circumstances of this Count, the Court holds, as rightly canvassed by the 1st Defendant’s Counsel that Hon. Justice A. R. Mohammed whom the prosecution alleges denied the 1st Defendant’s information that one of the guns belong to him is a vital witness whom the prosecutor ought to have called to lead evidence throwing light on whether or not what the 1st Defendant said regarding the ownership of one of the guns is true or false. This is particularly so as the said response of A. R. Mohammed J, in which he denied ownership of the gun was not placed before the Court to lend credence to the evidence of PW6.”

Indeed, no reasonable Court can come to the conclusion that the prosecution has established a prima facie case as it relates to this count.

In conclusion and from the totality of evidence adduced by the prosecution, I strongly hold that the trial judge was right to have ruled that the prosecution did not establish a prima facie case. The evidence adduced by the

prosecution was very much discredited under cross-examination. This by virtue of Sections 303 and 357 of ACJA warrants the trial judge to discharge the Respondent which was rightly done by the trial judge.

ISSUE TWO
This issue relates to whether the trial judge was right to have delved into the merits of the case and ascribed probative value to the evidence of witnesses and assessing credibility when considering the Respondent’s no case submission.

The Appellant by this issue contends that the trial judge went beyond the permissible latitude at the stage of the case and thereby occasioned a miscarriage of justice. The Appellant made reference to the trial judge’s ruling on pages 860 and 862 where it was held respectively that:
“To cap his litany of evidence against the interest of the prosecution and in support of the defence case, the witness after having been confronted with documentary evidence…admitted the fact of his earlier testimonies being based on speculation…”
“if the prosecution had in mind his official functions in relation to the judicial act of hearing and determining cases

that is a non-starter given the PW16’s testimony against the interest of the Prosecution to the effect in the course of his investigation of the case that he did not know of any case in relation to which the lodgments were made.”

The apex Court in the case of AJIBOYE & ANOR VS. STATE (1995) LPELR – 300 (SC) established what a trial Court must consider in a no-case submission thus:
“It must be recognized that at the stage of a no case submission, the trial of the case is not yet concluded. At that stage therefore, the Court should not concern itself with the credibility of witnesses or the weight to their evidence even if they are accomplices. The Court should also at this stage be brief in its ruling as too much might be said which at the end of the case might fetter the Court’s discretion. The Court should again at this stage make no observation on the facts…”
Similarly, in the case of ABOGEDE VS. STATE (1996) LPELR – 45 (SC) the same Supreme Court further explained what the trial Court must consider in a case where a no case submission has been made thus:
“When a Court is giving

consideration to a submission of no-case, it is not necessary at that stage of the trial for the learned trial Judge to determine if the evidence is sufficient to justify a conviction. The trial Court only has to be satisfied that there is a prima facie case requiring at least some explanation from the accused person. Evidence is said to disclose a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused.”
On the attitude of the Court to a no case submission, the Supreme Court has held that it is wiser for a judge to be brief in his ruling and make no remarks and observation. See BELLO VS. STATE (1966) LPELR – 25291 (SC) and UBANATU VS. COP (2000) LPELR – 3280 (SC). Although a lengthy ruling on a no case submission however, will not by its length alone vitiate the proceedings. See FAGORIOLA VS. FRN (2013) LPELR – 20896 (SC).
To my understanding, when a no case submission is made, the trial Court is called on to look at the oral and documentary evidence analytically, to detect whether the evidence adduced by the prosecution implicates the defendant to

warrant him putting in his defence. Essentially, when a Court is faced with a no case submission, it must look to see if a prima facie case has been established. In UZOAGBA & ANOR VS. COP (2012) LPELR – 15525 (SC), the Supreme Court gave the meaning of prima facie thus:
“A prima facie case therefore means that the prosecution’s case against an accused person has raised some serious questions linking the accused person to the crime and so calling for some explanation from the accused person and which only the accused person from his personal knowledge can give….”
The way in which a trial Court examines if a prima facie case has been established or not, is by looking at the entire processes before the trial Court including the charge, the statement of offence, the statement of prospective witnesses and the statements of the defendant. See DARIYE VS. FRN (2015) LPELR – 24398 (SC). Therefore, when in a trial, for the trial judge to uphold a no case submission, the judge must evaluate the evidence in order to come to the conclusion that the defendant has no case to answer. If the evidence is that which would warrant a

reasonable Court to convict the defendant, then he would be called in to put in his defence.
Sections 302 and 303 of Administration of Criminal Justice Act have codified the settled principles of law as it relates to no case submission. The Sections provide thus:
“302. The Court may, on its own motion or on application by the defendant after hearing the evidence for the prosecution, where it considers that the evidence against the defendant or any of several defendants is not sufficient to justify the continuation of the trial, record a finding of not guilty in respect of the defendant without calling on him or them to enter his or their defence and the defendant shall accordingly be discharged and the Court shall then call on the remaining defendant, if any, to enter his defence.
303(1) Where the defendant or his legal practitioner makes a no case submission in accordance with the provisions of this Act, the Court shall call on the prosecutor to reply.
(2) The defendant or his legal practitioner has the right to reply to any new point of law raised by the prosecutor, after which, the Court shall give its ruling.

(3) In considering the application of the defendant under Section 303, the Court shall, in the exercise of its discretion, have regard to whether:
(a) an essential element of the offence has been proved;
(b) there is evidence linking the defendant with the commission of the offence with which he is charged;
(c) the evidence so far led is such that no reasonable Court or tribunal would convict on it; and
(d) any other ground on which the Court may find that a prima facie case has not been made out against the defendant for him to be called upon to answer.”
I have reviewed the judgment of the trial judge. The trial judge in the beginning of his judgment explained the provisions of Section 303(3)(a) and what is expected of the Court when ruling on a no case submission. The trial judge then examined each count against the evidence of the prosecution to determine if the ingredients of the offence had been established to warrant the Respondent and the co-defendants to put in their defence. After this evaluation of the evidence against the ingredients of all the 18 counts, the trial judge concluded that the prosecution had not made out a prima

facie case against the Respondent in respect to all the counts.
In my opinion, the trial judge did not look at the evidence to establish that the prosecution has proved sufficient evidence to warrant a conviction but rather looked at all the entire processes before him including the charge, the statement of offence, the statement of witnesses/the defendant and the evidence in order to see if the prosecution has shown a prima facie case requiring at least some explanation from the defendant as regards his conduct or otherwise. He did not contrary to the allegation of the Appellant, express any belief or disbelief in the evidence of the prosecution. The trial judge also did not ascribe any probative value to any of the witnesses. All he did was state that the evidence of PW16 was shattered and quashed during cross-examination as such the prosecution did not establish a prima facie case and the prosecution did not see it fit to treat PW16 as a hostile witness. In sum, the learned trial judge did not delve into the merits of the case and ascribed probative value to the evidence of witnesses and assessing credibility when considering the Respondent’s no

case submission.
This issue is therefore resolved in favour of the Respondent against the Appellant.

ISSUE THREE
This issue relates to whether the learned trial judge was correct in his interpretation and application of Sections 53 and 60 of the Corrupt Practices and Other Related Offences Act, 2000 (as amended) and the Sections do not apply to counts 1 – 5.
The Appellant under this issue argued that the trial judge accepted the defence of custom raised by the Respondent and ultimately struck out Section 60 of the ICPC Act as unconstitutional. Similarly, it was argued that the trial judge was wrong to hold that Section 53 of the ICPC Act was inapplicable to the charge of gratification. Additionally, that the trial judge was wrong in holding that Sections 53 and 60 of the ICPC Act are in conflict with the Section 36(5) of the Constitution.
The Respondent on its part maintained that the Appellant did not appeal the decision of the lower Court declaring that Sections 53 and 60 of the Corrupt Practices and Other Related Offences Act, 2000 is void and inconsistent with 36(5) of the Constitutionas ground 8 is academic. It was also

argued that for Section 53 to apply, the Appellant must establish that the payment of the sum of N30,000,000 was wrongful as it must be linked to an intention to “influence” a person in the performance of his duty. Additionally, the Respondent argued that no law can place a burden on a defendant in a criminal case contrary to Section 36(5) of the Constitution.
At this juncture it is pertinent to reproduce ground 8 of the Amended Notice of Appeal hereunder:
“GROUND 8
The learned trial judge erred in law when it held that Sections 53 and 60 of the Corrupt Practices and Other Related Offences Act 2000 do not apply in this case.
PARTICULARS OF ERROR
i. It is the case of the Defendants that the sum of 30 million naira paid to the 2nd Defendant’s account by 3rd Defendant was a gift from common friends for the 1st and 2nd Defendant’s daughter’s wedding and therefore customary in nature.
ii. Section 60 of the Corrupt Practices and Other Related Offences Act 2000 prohibits evidence of custom as a defence in corruption cases.
iii. Section 53 of Corrupt Practices and Other Related Offences Act 2000

which raises a presumption of corrupt acceptance applies upon the prosecution making out a prima facie case of gratification against the Defendants.
iv. Sections 53 and 60 of the Corrupt Practices and Other Related Offences Act 2000 are within the exceptions created by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).”
It must be mentioned that the focal point of the Appellant’s arguments in its brief was that the trial judge accepted the defence of custom raised by the Respondent and ultimately struck out Section 60 of the ICPC Act as unconstitutional and that the trial judge was wrong in holding at page 869 of the record of appeal that Sections 53 and 60 of the Corrupt Practices and Other Related Offences Act, are in conflict with Section 36(5) of the Constitution and therefore void.
The Appellant, in ground 8 had the following as one of its particulars of error:
“Sections 53 and 60 of the Corrupt Practices and Other Related Offences Act 2000 are within the exceptions created by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The law is trite that particulars bring to the fore the real complaint of the Appellant against the judgment appealed against. In essence, the particulars are auxiliary to the ground of appeal. I therefore believe that the submission of the Appellant above as it relates to the trial judge’s decision that Sections 53 and 60 of the Corrupt Practices and Other Related Offences Act, 2000 being void can sufficiently be tied to ground 8 of the Amended Notice of Appeal.
The trial judge as it relates to Sections 53 and 60 of the ICPC Act on page 869 of the records of appeal held thus:
“…The Prosecution having not proved the monies were paid as gratification to the 1st Defendant and he accepted, the presumption of corruptly receiving the monies as provided for in Section 53 cannot arise. The factor which will activate the presumption provided under Section 53B the fact of proof of receipt of the money by the affected person as gratification. In this case, in which gratification was not proved, the section cannot apply. The Prosecution’s contentions to the contrary, with respect, does not hold water and is dismissed.
Before I

drop my pen on this issue, I must point out that a critical reading of Sections 53 and 60 of the Act shows that it is not the intention of the legislature that mere giving of gift as provided by Section 17(1) of the Act, without proof that the gift is or is intended to be a gratification will give rise to the presumption in Sections 53 and 60 that the gift was corruptly given or the accepted as an inducement or reward for something done or left undone. It cannot be the intention of the law maker that the mere giving of a gift without proof that it is or is intended to be an inducement or reward for something done or to be done, automatically qualifies the gift as a gratification for which the receiver is required in the last limb to prove contrary. As aforesaid, the recipient of the gift will be required to prove contrary only after it has first been proved that the gift was a gratification. To contend otherwise, as the prosecution has urged the Court in this case will amount to the Defendant being required to prove his innocence. This certainly will do violence to the provision of Section 36(5) of the 1999 Constitution of Nigeria which mandatorily provides

that “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
In an erroneous situation the contention of the Prosecution is seen as the intention of the legislature, then the said provision of Sections 53 and 60 of the Act stand in conflict with Section 36(5) of the Constitution and by the provision of Section 1(3) of the Constitution these sections of the Act cannot stand. They are void to the extent of their inconsistencies with Section 36(5) of the Constitution. This Court so holds.”
For a clear understanding, I will produce both Sections 53 and 60 of the ICPC Act respectively. Section 53 provides:
“(1) Where in any proceedings against any person for an offence under Sections 3 to 19 it is proved that any gratification has been accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be solicited or given, promised or offered, by or to the accused, the gratification shall be presumed to have been corruptly accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be solicited or

given, promised or offered as an inducement or a reward for or on account of the matters set out in the particulars of the offence, until the contrary is proved.
(2) Where in any proceedings against any person for an offence under this Act or any other law prohibiting corruption it is proved that such person has accepted or agreed to accept, obtained or attempted to obtain any gratification, such person shall be presumed to have done so as a motive or reward for the matters set out in the particulars of the offence, until the contrary is proved.…”
While Section 60 provides that:
“In any proceedings under this Act, evidence shall not be admissible to show that any such gratification mentioned in this Act is customary in any profession, trade, vocation or calling or on a social occasion.”
From the forgoing, it is clear that Section 53 of the ICPC Act raised weighty presumptions against offenders who are being prosecuted for offences specified under Sections 8 to 19 for accepting, receiving, agreeing to accept or to receive gratifications etc. Such gratifications are presumed to have been corruptly accepted or agreed

to be accepted or given. This means that once it is proved that gratification was received, that burden to prove that it was not corruptly received is on the defendant or alleged offender. It is also not an excuse to explain that acceptance of such gratification or gifts are customary by Section 60.
Upon a review of the trial judge’s finding, it cannot be said that the trial judge’s interpretation of Sections 53 and 60 was wrong. What the trial judge clearly stated was that for the two sections to apply it must first be shown that gratification was accepted. This means that gratification as it relates to Section 17(1) must be established before the two sections will apply. The trial judge categorically made it clear that it is not the proof that a person has accepted a gift that will warrant the sections to apply but proof that the gift was accepted as gratification.
I therefore agree with the trial judge that under the Nigerian law, the prosecution cannot shift the burden of proof on the Defendant as36(5) of the 1999 Constitution (as amended) provides that a person charged with an offence is presumed innocent until proven guilty.

Section 36(5) of the Constitution along with 135(1) of the Evidence Act 2011 makes it incumbent on the prosecution to establish the ingredients of an offence in order to discharge the burden placed on it. See the case of KARIMU VS. STATE (1989) LPELR – 1669 where it was held that:
“It is a cardinal feature of our criminal justice jurisprudence that everyone accused of crime is presumed innocent until proven guilty. Our system of criminal procedure places the burden of proof of guilty of an accused squarely on the shoulders of the prosecution…”
See also FEDERAL CIVIL SERVICE COMMISSION VS. LAOYE (1989) 2 NWLR (PT. 106) 652.
Coming to this conclusion, a clear reading of the trial Court’s decision will reveal that Sections 53 and 60 do not apply to counts 1 – 5 because the trial Court was of the belief that no gratification was proved to warrant the presumption in Section 53 or the exception in Section 60. I agree with this decision that the prosecution did not prove a prima facie case against the Respondent.
I resolve this issue in favour of the Respondent against the Appellant.
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ISSUE FOUR
This issue relates to whether the learned trial judge was right to preside over the case against the Respondent when he had a pending similar complaint before the National Judicial Council.

Counsel for the Appellant contended that the entire adjudicatory process as carried out by the Court stands tainted and vitiated which occasioned a miscarriage of justice. Additionally, counsel for the Appellant argued that in the circumstance of the case it has reservations whether justice was done or seen to be done. Particular instances were raised by the Appellant to back this claim including:
a) The trial Court being anxious to conclude the Prosecution’s case even when on the 17th of January the third witness for the day Mr Teidi was said to have been attacked by a gang of assassins, the trial Court rather than investigate threatened to do “the needful”. The comment was widely recorded by newspapers but does not appear on the record.
b) The trial judge during the adoption of the prosecution response to the Defendants’ no case submission descended into the arena of conflict by siding with the Defence.

Counsel for the Respondent has maintained that the factual basis for the Appellant’s allegations is non-existent and that the arguments of favoritism are not justified by a dispassionate appraisal of the record as well as the ruling. Furthermore, that the contention in paragraph 15.05(a) and 15.05(b) to the effect that matters reported in the unspecified newspaper were not reflected in the record of Court is an attack on the record of proceeding. Also, that the comments in paragraph 15 (ii) and (iii) of the Appellant’s brief of argument were not appealed, therefore are deemed accepted.

Having reviewed the arguments of the parties, this issue comes down to one thing which is, whether the trial judge denied the Appellant a fair hearing simply because he had a similar case at the NJC.
The Appellant’s counsel relied on the case of MOSHOOD ABIOLA VS. FRN (1995) LPELR – 41 to give the test to be applied to determine the likelihood of bias. In the case mentioned above, the Court held:
“…In considering whether there was a real likelihood of bias, the Court does not look at the mind of the chairman of the tribunal, or whoever it

may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right minded persons would think that, in the circumstances there was a real likelihood of bias, on his part then he should not sit. And if he does sit, his decision cannot stand.”
This is in fact the position of law as it relates to the test of bias affirmed by a plethora of cases. This is because justice is in fact entrenched in confidence and confidence is damaged when right-minded people believe that the judge was biased. That having been said, an allegation for bias must be supported by clear, direct, positive, unequivocal and cogent evidence from which real likelihood of bias could be inferred and not mere suspicion.
The apex Court in the case of WOMILOJU & ORS VS. OGISANYIN-ANIBIRE & ORS (2010) LPELR – 3503 (SC) defined bias thus:
“Black’s Law Dictionary Eight Edition defines judicial Bias as – A judge’s bias

towards one or more of the parties to a case over which the judge presides. Judicial bias is usually insufficient to justify disqualifying a judge from presiding over a case. To justify disqualification or recusal the judge’s bias usually must be personal or based on some extrajudicial reason. In the case Kenon v. Tekam (2001) 14 NWLR (pt. 732) pg. 12, bias is defined as – An opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the Court so influenced will be unable to hold an even scale.”
The Supreme Court in the same case went further to express other factors that could show real bias thus:
“…In the process of adjudication, there must not be reasonable suspicion of bias or likelihood of bias. Other factors which could show a real likelihood of bias are:-
(1) Hostility of strong personal animosity towards a party.
(2) Personal friendship, family or professional relationship.
A bias must demonstrate a real likelihood of an operative prejudice whether conscious or unconscious. There must be cogent evidence as opposed to mere vague suspicion to support, a contention of

real likelihood of bias.”
The allegation of bias is indeed a serious attack on the judge for which concrete evidence must be shown. Given the allegations of the Appellant as it relates to the trial Court’s attitude with regard to the attack on its witness, I have read the rulings of the trial Court and I find no merit in the Appellant’s argument. The trial Court categorically directed the Inspector General of Police to provide security for the prosecution witnesses. More importantly, it is the ACJA that has called for the day-day trial when it comes to criminal trials, therefore, I see no reason for the Court to be called anxious in hearing the case. Additionally, both the Court and parties are bound by the record of appeal and any party that wishes to challenge the correctness of record of proceedings must swear to an affidavit setting out the facts or part of the proceedings omitted or wrongly stated in the record. See GONZEE (NIG) LTD VS. NIGERIAN EDUCATIONAL RESEARCH & DEVELOPMENT COUNCIL & ORS (2005) LPELR – 1332 (SC).
A mere assertion in his brief of argument by the learned Counsel is not enough. Even the

portion of the trial Court’s ruling reproduced by the learned Counsel for the Appellant does not prove bias. In a nutshell, the mere fact that the trial judge had a similar case at the NJC is not enough reason to state that the trial judge was bias. The trial judge was not hostile nor did he show any strong animosity. A dispassionate reading of the quoted sections of the trial Court’s ruling does not in fact show any bias.
This issue is resolved against the Appellant and in favour of the Respondent.
This appeal is therefore hereby dismissed. I make no further orders.

PETER OLABISI IGE, J.C.A.: I agree.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA and I am in agreement with his reasoning and conclusion arrived at therein.

Appearances: